Posts Archive: Legal

If you pick up properties at a foreclosure sale or buy REO’s, you are bound to end up with a property that is Tenant occupied.Being familiar with the Protecting Tenants at Foreclosure Act of 2009 (PTFA), will come in handy if you want to evict the tenant. (For a copy of the PTFA click here)

PTFA protects tenants from eviction due to a foreclosure on the property that they occupy. These provisions took effect on May 20, 2009, and originally were scheduled to expire on December 31, 2012. However, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) changed the expiration date to December 31, 2014.

The PTFA requires a foreclosure buyer to give a tenant with no lease a 90 day notice to vacate before filing an eviction. If you give a tenant notice that is less than 90 days, you will be in violation of PTFA. This means if you jump the gun and start your eviction too early, the court will dismiss your eviction action and most likely award fees and costs to the tenant’s attorney.

PTFA applies in the case of any foreclosure on a “federally related mortgage loan” OR on any dwelling OR residential real property.

However, if the Tenant has a legally binding, bona fide lease, that was entered into before notice of foreclosure, the 90 day rule does not apply and the tenant must be permitted to stay in the residence until the end of their lease term, with the exception of the purchaser of a foreclosed property who will occupy the property as their primary residence. In that case the new owner does not have to honor the lease. However, even in that scenario the tenant must still receive 90 days notice before they may be evicted.

When it comes to managing your single, multi-family or commercial properties, or second homes, rest easy – Octazon Management has got you covered and can protect your assets and take away your property management headaches and distractions through our full-service or back office property management services.

When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales– so you never have to worry about losing control of your relationship with the owner.

With Octazon, we bring order to residential & commercial property ownership.Call us 888-324-9528 or email us at info@octazon.com . Check us out @ www.octazon.com

In my June 2013 Blog, I shared with you a major change to the Florida Landlord &Tenant Act regarding security deposits that will require changes to your lease form. In that blog, I shared with you the new language. (To view the blog check here).

In a subsequent blog, in July, I addressed another “security deposit” issue change to the Florida Landlord &Tenant Act, namely; If the owner/landlord or its management company failed to timely send out the Notice of Intention to Impose Claim on Security Deposit, or didn’t have the proper language in the notice that is set forth in the statute, you must return the entire deposit. See that blog here for further details.

In this blog, I am sharing with you a recent case decided, July 1, 2015–Obendorf V Rasmussen. In that case, the tenant made a claim that landlord did not place the security deposit in an escrow account and therefore the landlord should not have a right to make a claim on the security deposit. The judge in Sarasota County Court ruled that although not placing the security deposit in an escrow account is a violation of Florida Statutes 83.49(1), which states that the landlord should not co-mingle the security deposit with its operating funds, however, the statute provides no penalty for such violation.

Based on this ruling, the landlord was still allowed to make a claim on the deposit and attorneys fees and costs against the landlord were denied.

About Octazon: Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties. When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales – so you never have to worry about losing control of your relationship with the owner.

Good news for investors- the South Florida rental market is still hot – actually the hottest it has been in years!

There has been a surge in apartment construction which is largely due to developers taking advantage of millennials who want to move out of their parent’s house but can only afford to rent.

While the monthly cost of owning a home is still less than renting in the majority of markets, for now, the dream of homeownership is being postponed, due to the reasons such as lack of available funds, median income, millennials still struggling to qualify for mortgages and less inventory of homes caused by investors and other cash buyers who are not tethered to the typical affordability constraints.

Another reason why millennials are bypassing homeownership for rentals is that they simply do not want to be strapped down at this stage if their life. If you don’t plan to stay in the home for seven years, it’s better to rent versus buy, despite rents being higher than homeownership. Of course having apartment amenities, like the pool, the gym, the park, the playground, is also very attractive.

The affect – due to the desire of young professionals to live in urban settings; and the lack of apartment construction from 2008 to 2013- Urban areas are bustling trying to keep up with the booming rental market with the demand for more rental houses and apartments. This demand continues to drive up rent prices and creates less vacancies. It is even causing fewer evictions as tenants are more apt to behave themselves, liking their locations and having less alternatives of where to go.

This means at the same time, with units being quickly rented, it has allowed landlords to be less tolerant with problems and difficult tenants and faster to pull the trigger on evictions.

Of course landlords still need to have the same valid grounds to evict a tenant and should not let the hot market make them overly confident to pull the eviction trigger too soon. While the market dynamics have changed the eviction laws have not. To bring a weak eviction can be very costly, especially if you lose and have to pay the tenants attorney fees. Let your attorney advise you if you have a strong case or if you need to work things out with your tenant.

About Octazon: Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties. When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales– so you never have to worry about losing control of your relationship with the owner.

I previously blogged about July 4th and how it brings out the patriotism in people including your Tenants. In that blog we discussed the proper use of displaying a U.S. flag. ( see the article on my blog here)

In this new blog, we will discuss one of the dangers of July 4th – fireworks. While fireworks can look cool and create a buzz of excitement, believe it or not – not everyone loves fireworks. On July 4th, more U.S. fires are reported than on any other day, and fireworks account for two out of five of those fires. Even more shocking is according to the National Highway Traffic Safety Administration, July 4th is the third most-deadly holiday celebrated in the U.S. following Thanksgiving and Labor Day.

So what are landlords to do to protect its tenants and their property: For starters, there is the dissemination of the basic safety tips from the US Consumer Product Safety Commission: Never allow young children to play with or ignite fireworks – Never place any part of your body directly over a firework when lighting the fuse and always back up to a safe distance immediately after lighting fireworks. Never try to re-light or pick up fireworks that have not ignited fully. Never point or throw fireworks at another person. And most important keep a bucket of water or a garden hose handy in case of fire or other mishap and after fireworks complete their burning, douse the firework with plenty of water from a bucket or hose before discarding it to prevent a trash fire.

It is best to make tenants aware of the rules regarding fireworks and other explosive devices at the inception of renting, by having a clause in your lease that prohibits their usage in or around the property. A sample good lease clause is:

Explosive devices, smoke bombs, firecrackers, flares, sparklers, fireworks or any other noise, smoke, flame or spark-creating item or novelty is expressly prohibited in the Property or anywhere on the Property or common areas. Possession of and/or use of any of the foregoing by the Tenant, any occupants or guests of the Tenant whether or not the items are legal or illegal to purchase, possess or use under the laws of the State of Florida, may subject the Tenant to eviction from the premises and shall constitute a serious default under the terms of the Lease Agreement.

If your leases do not contain the above clause or a similar one, then add this to your rules and regulations and notify each new tenant of the revision. Upon lease renewal, add in language as part of the lease renewal.

About Octazon: Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties. When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales – so you never have to worry about losing control of your relationship with the owner.

Under Florida Statue a Tenant cannot withhold rent from the Landlord without FIRST sending proper notice and allowing the Landlord time to cure the non-compliance, violation, or default of landlord obligations. Even then, To withhold rent comes with strict qualifications.

Failure to send the landlord the required notice has significant impact on a tenant’s rights under the rental agreement and Florida Statute. There is no automatic “self help or repairs and deduct” The notice should be delivered 7 days before the rent is due. If mailing, the tenant must add 5 days for mailing and therefore must mail it 12 days before the rent is due.

Under Florida Statute, if the landlord materially fails to comply with its obligations, then 7 (or 12 days ) after delivery of written notice by the tenant, the tenant may terminate the rental agreement.

HOWEVER: If the landlords failure to comply is beyond the control of the landlord AND the landlord has made and continues to make every reasonable effort to correct the failure to comply THEN the rental agreement may be terminated or altered by the parties, as follows: (a) If the landlord’s failure to comply renders the dwelling unit untenantable\unlivable and the tenant needs to vacate, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.(b) However, if the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance can only be reduced by an amount in proportion to the loss of rental value caused by the noncompliance. But only if tenant gave timely notice. Otherwise, tenant must pay the upcoming full month rent and can not withhold rent, not even proportional rent, until the following month.

That said, it is never a good idea and its too risky for Tenant to make its own determination as to the amount of rent deduction or to simply withhold rent. It is much safer for tenant to take that reasonable proportional amount it disputes and book it in the courts registry. Otherwise they will face the likely risk of an eviction for not paying full rent or for deducting an unreasonable proportional amount.

Bottom line: If the tenant sends a proper statutory notice, they are entitled to try and break the lease due to the damage. However, if they remain in the apartment, they must pay. If they stay and don’t pay, or if they stay and deduct an amount which the landlord disagrees with, the landlord can give them an eviction notice and let the tenant tell their story to the judge. Once legal proceedings begins, the tenant must pay all past due rent, and rent as it comes due during these legal proceedings, into the registry of the Court until the tenant’s disputes with the landlord have been resolved.

Keep in mind, if a landlord loses in court, the landlord may be held liable for any costs and attorney’s fees incurred by the tenant. If the tenant loses in court, the tenant may be liable for the landlord’s costs, attorney’s fees and if the repairs were made, the tenant will be obligated to pay the back rent that was withheld.

About Octazon:Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties.

When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales – so you never have to worry about losing control of your relationship with the owner.

Always make sure that your lease has a clause that addresses a dishonored or bounced rent check, aka Non Sufficient Funds (NSF). This includes compensation for the bounced rent check and calls for a eviction for non payment of rent. The purpose of a NSF lease provision is to reimburse you for charges that you will incur for negotiating the bounced check. The compensation should equal the amount your bank will charge you for the bounced check, plus whatever bookkeeping, administration and overhead costs are involved in dealing with the NSF. Florida law does not take favorably to charging tenants with penalties . Therefore, you should not call this fee a penalty, but rather additional rent, as noted below. This NSF fee is also in addition to any applicable late fee.

If the tenant is still occupying the rental unit and it was a bounced rent check, i.e. NSF was for a rental payment, serve a 3-Day Notice for the rental amount still owed (& not a demand letter). In the 3-Day Notice, the NSF service charges should be labeled as additional rent. Additionally, because the underlying rental obligation continues to exist, the tenant is also subject to the late charge in your lease (assuming the grace period for the rental payment has expired).

Of course, if a NSF check was given as payment in response to a 3-Day Notice (adding insult to injury), then the prior 3 – day Notice is still in effect since the NSF payment is not deemed a valid payment in connection to the Notice.

The following language is an abridged version of an Octazon Lease:

Dishonored checks will be subject to additional rent of 5% of the check amount or a $40.00 charge as additional rent, whichever is greater. All returned checks or dishonored checks shall all be deemed additional rent under the Lease and treated equally the same as rent. Failure to pay or reimburse Landlord all sums owed by Tenant, shall be considered a failure to pay rent and Landlord may include all such amounts of additional rent in any statutory notice to Tenant for payment of rent or to vacate Premises. The imposition of late fees and/or dishonored check charges is not a substitution or waiver of available Florida law remedies.

If you would like an Octazon’s custom lease prepared by an attorney, please email Mkatz@octazon.com

About Octazon: Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties.

When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales – so you never have to worry about losing control of your relationship with the owner.

In my last blog, I shared with you the “DO’S & DON’TS” of tenant screening. ( See the article HERE )

Experienced landlords know that bad tenants cause worse problems. You can preempt problem tenants through a good screening process. However, when you’re screening and talking to a prospective tenant – watch what you say and what you do! Your best intentions and unintended actions can open oneself to litigation. There is an art to getting the information you need without exposing yourself to liability. For example:

When screening a tenant, it’s ok to ask their date of birth so that you can conduct a background screening or meet the requirements of a 55 and older living facility or determine if the applicant is over 18. But do not ask outright their age. Asking ones age in most counties is deemed a discriminatory question. It is also ok to ask how many people or occupants will be staying on the property with you? Key word is people or occupant. But do not ask how many children – (once you use the “c” word and deny the applicant for legitimate reasons, it may be wrongly attributed to a “no child policy”.

It’s ok to ask do you have any pets. Or to say that we have a no pet policy since pets are not a protected class. But it’s not ok to say we have a no animal policy because disability, comfort and emotional support animals are not considered pets.

It’s smart to ask, why are you moving? When are you looking to move? Can I Ask for References from your former landlords and employer? Has the landlord ever asked you to leave your unit or has the landlord ever filed an eviction against you? The key words are asked to leave or eviction filed and not if you were ever evicted. The evicted question doesn’t provide any real value as most tenants are not evicted. Most tenants leave before they are evicted and if only asked if evicted, they will truthfully say no, having you believe they have been a stellar tenant.

It’s ok to ask if your applicant has a criminal record – a conviction and not just an arrest or charge. But it is not ok to ask if you have even been arrested or charged with a crime, as in our great country, one is presumed innocent until proven guilty.

If you would like to have the “DO’S & DON’TS” of tenant screening in handy business card or in poster form to hang up, or if you would like Octazon to provide a seminar on how best to screen, please contact Marvin Katz of Octazon Management

About Octazon: Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties. When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales – so you never have to worry about losing control of your relationship with the owner.

In honor of Fair Housing Compliance Month, I want to share with our Realtors and our Back Office clients, some Fair Housing compliance tips for Prospective Tenant Screening.

The below questions list what is ok to ask and what is not ok to ask, during tenant screening, in order to comply with and avoid violating the Fair Housing Act: ( For further understanding on these Do’s and Dont’s, check out our second posting – Tenant Screening, Part II )

.“DO ASK”

• Name, phone number, current address & date of birth? • Are you currently employed? Can we contact your employer? • Any other income sources?

• What is your credit score – will you allow us to pull a credit report?

• How many people in total will be occupying the property with you?

• Any pets? • Any smokers? • Reason for moving from previous property? • Did you give your landlord notice of your moving? • Who are your previous landlords? Can we contact them?

• Individual Tax ID # or S.S #? • Are you looking for Section 8 housing? Do you have voucher? • Are you currently in bankruptcy? Do you have prior dismissals of bankruptcy? • Do you have liens, judgments or collections? • Have you ever been asked to leave by a landlord? Have you ever had an eviction filed against you or been evicted? • Any misdemeanor involving sexual misconduct? • Convicted of a crime? • Ever pleaded guilty or no contest to a crime or had adjudication withheld or deferred for a criminal offense?

“DON’T ASK”

• Race? • Color? • National Origin? • Sex (gender)? • Do you have any physical and or mental disability/handicap? • Familial status (i.e. children under 18, pregnant, adopted)?

• Religion? • Age? • Political Affiliation? • Ancestry? • Are you currently in the military or are you a veteran? • Marital Status (Married, single, divorced?) • Do you have a marriage license?

If you would like to have the above ” Tenant Screening Tips ” in handy business card or poster form to hang up, please contact Marvin Katz of Octazon Management,

About Octazon: Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties. When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales – so you never have to worry about losing control of your relationship with the owner.

One of the Fair housing no no’s is: Do not discriminate against a tenant on the basis of familial status, i.e. do not turn down a prospective tenant or take action against an existing tenant, simply because they have children.

Fair Housing violations can even come about with the best intentions – trying to be helpful. For example, telling a mom that you have a better property or unit down the block for their kids. This is called steering. So, when you are talking to a prospective or existing tenant with children – watch what you say and what you do!

So, what can you do if other tenants complain about the children next door who make noise, slam doors, blast music and video games and bang their drums 24-7? Is the handling of that type of kid disturbance an exception to the Fair Housing rules? The answer is NO! Noise is noise and if the noise and disturbance is excessive then deal with it like any other real disturbance. Do not focus on the fact that it is the children making the noise and never focus on the age of the noisemaker. You never want the tenant to misinterpret your actions as really complaining about their children and not the real problem – the noise. Simply address it like any other noise disturbance and if necessary, a Seven Day Notice of Noncompliance with Opportunity to Cure can be served.

Remember, your Tenants have a contractual right to “quiet enjoyment” and if that is being breached, then it is ok to take appropriate action to resolve – regardless of the age of the noisemaker. So long as your rules apply to everyone & not just children, you are good.

Fair Housing Month is a reminder for all: property managers, realtors, asset managers, maintenance teams and any one else dealing with a tenant (whether prospective or actual) – to be very careful and diligent in not violating the Fair Housing Laws – they are very costly to defend and resolve.

About Octazon: Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties. When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales – so you never have to worry about losing control of your relationship with the owner.

Providing Simplicity and Peace of Mind™ Call us 954-674-2467 Email us at info@octazon.com today.

Check us out @ www.octazon.com SINGLE FAMILY HOMES- MULTI FAMILY – COMMERCIAL – OFFICE INDUSTRIAL

This BLOG is to provide helpful information and should not be considered legal advice

Even the appellate court has weighed in on this by ruling that the term “e-mail” is considered to be a form of “mail,” and is included within the definition of “mail”.

We all know one can mail a three day notice (in which case you need to add on at least a minimum of 5 additional days to the due date – turning the 3 day notice into an 8 day notice). But did you know that you could also send a three day notice by email to the tenant ?

The courts have ruled that the e-mail sent by the landlord to the tenant and acknowledged by tenant through a return e-mail confirmation, constitutes a mailing sufficient to satisfy the requirement set forth in the Florida Statutes.

Note- If you are going to send the three day notice by email, you should make it at least an 8 day notice ( i.e. add 5 additional days to the due date of the 3 day notice) since the tenant is entitled to respond by regular mail.

A property manager is authorized to sign and mail or email the notice.

About Octazon: Whether you own a few properties or hundreds of properties in Florida, Octazon Management, LLC is here to simplify property ownership and management. We can help you manage any and all of your properties. At Octazon we provide simplicity & peace of mind. Octazon uses cutting edge, cloud based property management software that fully integrates the entire property management and financial process enabling the investor direct access to valuable owner/investor information and reports 24/7 that helps you and your accountant identify all your valuable tax deductions.

When providing management services to Realtors, Octazon will NOT provide the leasing, rentals or sales – so you never have to worry about losing control of your relationship with the owner.